Somehow still going leftism from who knows where. || "We live in a world ruled by fictions of every kind - mass-merchandizing, advertising, politics conducted as a branch of advertising, the pre-empting of any original response to experience by the television screen. We live inside an enormous novel. It is now less and less necessary for the writer to invent the fictional content of his novel. The fiction is already there. The writer's task is to invent the reality." -- JG Ballard.

First, it should tell us that torture affects those charged with implementing it just as much it does those on the receiving end. With the exception of the few sadists and genuine psychopaths who are likely to find themselves in such roles, the report notes the sickened and disgusted responses of hardened CIA officers to what they both saw and were being asked to do. Doctors who pledge to do no harm were forced to choose between refusing to treat detainees they were essentially fixing up enough so they were fit to be tortured again, and letting those under their care die, with all the potential consequences the latter option would open up. How many would have died had it not been for medical intervention we'll never know; at the same time however, doctors were also behind the rectal feeding, as well as the forced feeding of hunger strikers at Guantanamo, itself considered to be a form of torture by the UN and condemned in journals by senior doctors.

Second, the decision by one Western state to use torture inevitably makes its allies complicit, such is the way intelligence agencies cooperate. This puts those allies in a great quandary: do they blow the whistle, do as much as they can to avoid becoming wholly complicit in the practice, or the opposite and accept it as necessary in extraordinary times? Our complicity in the CIA's programme can still not be properly quantified for the reasons outlined in yesterday's post. What we do know is that just like the CIA lied to everyone concerned, including politicians themselves about what they were doing, so too did our spooks. We know that as early as January 2002 MI6 officers reported back to their superiors that detainees at Bagram airbase in Afghanistan were being abused; this was before the torture regime proper had been established. Those officers were told, wrongly, they were not required to intervene to prevent the abuse from continuing. Despite these and subsequent reports, MI6 claimed it wasn't until 2004 and the Abu Ghraib scandal they properly realised the "black sites" they were aware of were being used as torture dungeons.

To believe that you have to believe the intelligence agencies are both unimaginative and lack inquisitiveness, precisely the qualities demanded of them. We also now know about the renditions of Abdul Hakim Belhaj and Sami al-Saadi, both of whom were sent back to Colonel Gaddafi's prisons via the services of MI6 and the CIA. Belhaj arrived back in Libya two weeks before Tony Blair went to meet his new friendly dictator. Both he and Jack Straw deny any involvement in the rendition of the Libyans, Straw claiming that he was kept out of the loop. MI6 respond they operate under ministerial oversight, more than suggesting Straw signed off on the rendition.

Let's not limit this to just Straw and Blair though, as a whole host of New Labour ministers also told if not lies then half-truths in an attempt to protect both the United States and the intelligence agencies. Those with long memories for the mundane might recall the furore after the release of the "seven paragraphs", which detailed what the security services knew about the mistreatment of Binyam Mohamed, who was tortured in Morocco for the CIA before he was sent on to Guantanamo. Alan Johnson, then home secretary, said the idea the security services didn't respect human rights was a "ludicrous lie", while David Miliband fought the courts for months in an eventually futile attempt to prevent the paragraphs being released. This led directly to the justice and security bill passed this parliament, supposedly meant to prevent the "control principle" of intelligence from an ally being published being violated in such a way again. That we know thanks to Edward Snowden how tens of thousands of contractors and sub-contractors have access to secret documents obviously doesn't mean the act was in fact meant to prevent ministers and the intelligence agencies being embarrassed again in such a way.

Lastly, the report shows just how quickly practices thought completely abhorrent can be implemented when national emergencies are declared and extraordinary powers handed out. The CIA may well have lied to politicians about what it was doing and the president may not have been fully briefed, but senior figures in the Bush administration did know about and signed off on similar techniques to those adopted. It's worth reflecting just how close we came in this country to giving the police powers akin to those of authoritarian states: not just the attempt to ram 90 days detention without charge through parliament, thankfully defeated, but also the struck down indefinite detention without charge of foreign "terrorist suspects", the law lords ruling the life of the nation was not threatened as politicians claimed. We can argue over the additional powers still being sought which are claimed to be necessary to deal with the renewed threat, yet nothing proposed comes near to the attack on basic civil liberties Tony Blair and then Gordon Brown were behind. The question remains whether come the next emergency we'll remember any of these lessons.

When you then realise this is a mere 525 page summary of the full 6,000 page report submitted to the White House, this being the agreed upon redacted (did I mention the redactions?) shorter version for those of us without the requisite security clearance, it becomes clear that regardless of the readability problems, this truly is an attempt to quantify just what did happen immediately after 9/11. A good proportion of it we already know: within a matter of days George W. Bush had given almost carte blanche to the CIA to "capture or detain" nearly anyone posing a threat to the United States, "granting the CIA significant discretion in determining whom to detain, the factual basis for the detention, and the length of the detention." The CIA at first didn't know what to do: anyone who's read the Looming Tower will know that while there were some within the US intelligence community who had expertise on bin Laden and al-Qaida, they weren't numerous and didn't have the resources they needed.

Matters came to a head with the capture of Abu Zubaydah, the first significant al-Qaida figure to be transferred into US custody. Despite cooperating with the FBI officers who first questioned him, the CIA became convinced he was holding back information about specific threats or plots, and equally convinced themselves the only to get Zubaydah to detail what he knew was to use "enhanced techniques". The only research the committee found the CIA to have looked into was conducted by two contractors previously with the U.S. Air Force Survival, Evasion, Resistance and Escape (SERE) school, given pseudonyms in the report but who are known to be James Mitchell and Bruce Jessen. They produced a report on an al-Qaida manual thought to be on resisting interrogation; despite having no experience as interrogators themselves, or any specialised knowledge on al-Qaida, terrorism or pretty much anything relevant to Zubaydah whatsoever, one of the pair had read about "learned helplessness", and thought "inducing such a state could encourage a detainee to cooperate and provide information."

Unsurprisingly, he believed the way to induce this state was to adapt somewhat the methods taught to cadets at the SERE school, 12 of which he recommended specifically. These included the most notorious, waterboarding, but also "walling", throwing a detainee into a specially built "flexible" wall, sleep deprivation, cramped confinement, use of diapers, and mock burial. Almost all were to be used, and on far more than just the "3" some have claimed to have been specifically tortured by the United States rather than by partner government officials. Once authorised, Zubaydah was subjected to these techniques in '"varying combinations, 24 hours a day" for 17 straight days, through August 20, 2002'. As the report drily notes, the interrogation was later deemed a success not because Zubaydah produced the information the CIA believed he was hiding, but "because it provided further evidence that Abu Zubaydah had not been withholding the aforementioned information from the interrogators". Orwellian doesn't even begin to describe it.

These interrogations were also more brutal than had previously been admitted. Zubaydah lost conciousness during one waterboarding session, "bubbles rising through his open, full mouth", and had to be revived through medical intervention. Khalid Sheikh Mohammed, waterboarded 183 times in total, had his lips held open and water poured over his mouth as he tried to breathe. In what can only be considered pure sadism, at least 5 detainees were fed via "rectal rehydration", in one case in what seems to have been a punishment for a detainee self-harming. Detainees were hung from bars on the ceiling of their cells, left wearing only diapers, sometimes for days at a time. When President Bush was finally briefed on the enhanced interrogation program, he expressed disquiet at an image of one detainee in precisely this position. 39 detainees were subject to "cold water dousing", which is exactly what it sounds like. This took place in environments described by the CIA themselves as "dungeons", where one detainee, Gul Rahman, died of hypothermia. The officer who ordered his torture was subsequently recommended for a $2,500 cash reward for his "consistently superior work".

At least now no one can say they don't know the depths the United States sank to, overcome by emotion, a thirst for revenge and determination to prevent anything like it happening again. As for ourselves, all we have still is those reports mentioned at the outset, completely lacking in detail and which have only scratched the veneer of the intelligence agencies' involvement with and almost certain complicity in the US program. While the redacted version of the report does not make clear that Diego Garcia was used as a "black site" as well as a stopover point as had been reported, it does name three British residents detained in the secret prison system, including Bisher al-Rawi and Jamil el-Banna, who were all but handed over to the CIA by MI6. If David Cameron truly means what he says about losing "moral authority", then it's still not too late to order a full judicial inquiry into our policies post-9/11, the sort capable of gaining the support of all parties. The alternative is another Woolwich-type debacle, where the ISC sifts through the evidence and then concludes it was someone else's fault, presumably in this instance the United States' rather than Facebook. Then again, do we really have much in the way of moral authority to lose?

It bears repeating then that if it hadn't been for the courts, both here and in Strasbourg repeatedly blocking the attempts by successive governments to deport Qatada back to Jordan without receiving adequate assurances he wouldn't face "evidence" acquired as a result of mistreatment, an innocent man would now most likely be enjoying the hospitality provided at the Jordanian king's finest prison establishments. Qatada is without doubt an utterly repellent individual, a supporter and apologist for terrorist groups, as proved by his defence of the al-Nusra Front in Syria, but just as he never faced any charges in this country, managing to stay on the right side of the law, he is not a terrorist himself.

Our determination to get rid of Qatada also leaves Jordan with the problem of what to do with him if he is indeed also found innocent of the remaining charges. While here he was relatively limited in his ability to propagandise, with leaked interviews from prison about the only way he had of communicating with supporters. In Jordan journalists have spoken to him at the end of court sessions, while simply being in the dock has given him the opportunity to speak out. Not that this bothers our politicians, far more concerned with making clear there is no possibility he could return if found innocent. Might it have been an idea to try and build a case against him back here, rather than just wash our hands of the man we gave asylum in the first place?

Wednesday, April 16, 2014

The conspiracy theories return.

Only on Monday were we mentioning in passing Sir Peter Gibson's truncated inquiry into alleged complicity in extraordinary rendition by our glorious security services and government. His final report sat waiting to be published for almost 18 months as arguments over which secret documents could and couldn't be included in full raged, regardless of how meek and mild Gibson's actual conclusions were. One of the key claims from all involved was this time the security services had cooperated fully, making the "vast majority" of requested documents available, except for those that couldn't be released without US permission.

Now via al-Jazeera America (and Yorkshire Ranter) comes another reason why both this government and the one previous would like the report's summary to remain sitting on President Obama's desk for a while yet. According to two US officials who have had access to parts of the 6,000 page report, it confirms for the first time that despite repeated denials from ministers back then and the Gibson inquiry not receiving any documents (PDF) that said otherwise, Diego Garcia was indeed used not only as a stopover point for rendition flights as was admitted in 2008, but also as a "black site". This was with the full permission of the government, despite the likes of Jack Straw and David Miliband time after time telling parliament the exact opposite was the case.

If confirmed, it not only means ministers lied to both houses of parliament to protect the United States and its torture programme, it's also the first time the mistreatment of detainees has been found to have occurred on UK territory. As all the reports up till now have also cleared the government of complicity in actual extraordinary rendition, having not considered the cases of Belhaj and Sami al-Saadi while downgrading the transfers of Bisher al-Rawi and Jamil el-Banna to Guantanamo as "renditions to detention", it would also for the first time leave the government with no wiggle room on that charge, potentially opening the way for more compensation claims, or even prosecution for those who gave the Americans permission to use their base on Diego Garcia as they saw fit.

Once again then we can be glad the eventual follow-up to the Gibson inquiry has been handed to the fearlessly independent Intelligence and Security Committee, the same one which let the intelligence chiefs know the questions they were going to be asked beforehand (although, it must be noted, they probably would have known anyway such are GCHQ's abilities). It must also be a relief to Baroness Amos and David Miliband that they have since moved on from the Lords and the Commons respectively, as both insisted the government knew nothing about the use of Diego Garcia to host detainees, although there's a certain irony in how both are now involved in humanitarian work, Amoss at the UN and Miliband at International Rescue. As for Jack Straw, he's set to leave parliament at the next election, probably before any subsequent inquiry reaches its conclusion. While the chances of Inspector Knacker coming to call are unlikely, to judge by their past involvement in similar cases, it hopefully won't come too late to further tarnish what deserves to be regarded as one of the most ignominious political careers of recent times. It might not be the equivalent of having your penis slashed with a scalpel, being deprived of sleep for over 11 days, forced into a pet carrier for two weeks or shackled to the ceiling of a cell by your wrists, but it's something.

Thursday, December 19, 2013

Rendition: one step closer to, something.

A day after saying I was right I can swiftly redress the balance by making clear I was also wrong. There is actually very little in the Report of the Detainee Inquiry aka the Gibson report (PDF) that's been redacted. Indeed, only one brief section of the report has been, although the main redaction consists of an entire paragraph (page 48 onwards, 5.23) which reading between the lines was an account of what MI5 and SIS officers saw on being allowed to interview detainees at Bagram airbase on the 9th of January 2002. In what seems to be the first instance of an officer reporting back first hand the potential mistreatment of detainees, SIS Head Office responded by telegram on the 11th of January with advice that while it was "important that you do not engage in any activity yourself that involves inhumane or degrading treatment", "the law does not require you to intervene to prevent this". In fact, international law explicitly states the opposite. Another entire paragraph is then redacted, and this time it's impossible to know what the closed report said.

The main reason why more hasn't been redacted is immediately apparent on reading the rest of what is by inquiry standards, even one which was cancelled early, a fairly short document. For anyone who presumed the report would deal in detail with individual cases of alleged complicity in rendition, they're likely be left extremely underwhelmed. What the report amounts to is little more than a reprise of the narrative which those who've followed the rendition scandal from the outset will already be familiar with. This is hardly surprising when it draws heavily on the two previous reports by the Intelligence and Security Committee, 2005's detainee report and 2007's one on rendition. Both were wholly inadequate, thanks to how the ISC didn't then have the power to demand documents from the agencies, and the usual failure of the spooks to tell the truth. Gibson even fully accepts the ISC's defintion of what is and isn't an extraordinary rendition, so once again the agencies are cleared of personal involvement in rendition, despite the massive role played by MI5 in the transfer to Guantanamo of Bisher al-Rawi and Jamil al-Banna.

Despite also having almost full access to the documents requested from MI5 and SIS (the "vast majority" were released, although some, especially those requiring American consent have not been, which is interesting to note considering the NSA's horrendous failure to keep GCHQ documentation safe), new revelations are extremely few and far between. We already knew for instance that while expressing concern about conditions at Guantanamo in public when it opened, Jack Straw was agreeing the transfer of British citizens to the detention camp behind closed doors. One new detail is that Straw, apparently looking for an alternative, suggested to David Blunkett the then being drafted Extradition Bill could try and restrict the precedent set by R vs Mullen, where the unlawful return of Nicholas Mullen from Zimbabwe had resulted in his conviction of conspiracy to cause explosions being quashed (page 35). Blunkett reported back 5 months later saying "the obstacles to this suggestion are simply too formidable".

The key issue that remains is the one considered in chapter 6 of the report (page 73 onwards). Despite what the then heads of MI5 and SIS said to the ISC previously, it's apparent there was more than enough evidence collected by the agencies themselves, not least from the reports of officers back to their heads, to suggest mistreatment was fairly widespread at Bagram and elsewhere. Gibson says these "reports ... were of variable quality and viability", but when we now know that after the very first visit by British officers to Bagram they were reporting back their concerns only to be told they didn't have to worry their little heads about things like the Geneva convention, it's difficult not to conclude that some within the services knew full well what was happening. Indeed, it seems as though as early as 2002 MI5 was conducting internal reviews in an attempt to collate the treatment of detainees in Afghanistan, Pakistan and Guantanamo. Despite this, the report reveals, no centralised record was subsequently kept of either allegations of mistreatment or first hand accounts from officers themselves.

As to whether ministers were informed of these concerns, something that has previously been unclear, the report does little to clear things up. Tony Blair annotated a briefing note on Guantanamo saying although he had been sceptical about claims of torture, it had to be "quickly establish[ed] that it isn't happening". Jack Straw was also made aware of the report from Bagram, and like Blair, annotated it; he also went on to intervene in both 2003 and 2004 with the Americans with concerns on the treatment and conditions British citizens were subject to. It wasn't until after the Abu Ghraib scandal came to light however that Straw specifically asked SIS to provide him with information on their experiences in interviewing those held in Afghanistan. As much as it seems the security services didn't go out of their way to keep ministers informed, the ministers themselves hardly seemed to have been too bothered either.

Which, again, isn't wholly surprising when we know Straw was involved at around the same time in the transfer of Abdul Hakim Belhaj and Sami al-Saadi back to Libya. Straw for his part responded in the Commons, once again denying that he was in "any way complicit in the unlawful rendition or detention of individuals by the United States or any other state". The problem for Straw is that MI6 says they only acted in accordance with ministerial authority, meaning one of the two has to be wrong.

Aren't you glad then it'll be the ISC investigating once again, rather than a fusty old judge with a legion of lawyers getting fat off the taxpayer doing the interrogating? Straw certainly must be, as no doubt are the intelligence services themselves. Ken Clarke, who must have pulled the short straw and so gave today's Commons statement despite no longer being the justice minister, certainly didn't give anything approaching an adequate explanation as to why a judge-led inquiry can't take place now, with consideration of the alleged Libyan renditions delayed until the the court case and police investigation have concluded, whereas it seems the ISC can do both at the same time. If nothing else, today's report makes clear that questions from parliamentarians, especially those who have previously held the same positions as those accused, are simply not going to be of the same standard as from those appointed to helm an independent inquiry, not least when the ISC is already conducting at least two other substantial investigations at the same time.

Then there's the very issue we started with. This report has been with the prime minister for 18 months. We can't know the battles that went on between Gibson and the Cabinet Office over the redactions, only in the end they've turned out to be relatively minor. That it's taken such an incredible amount of time to be published does though suggest any report eventually issued by the ISC is even more likely to be affected. I cannot possibly see how redacting that first paragraph dealing with events more than 10 years ago could affect national security now, and yet in the end Gibson gave in and allowed it to be removed. When you also consider they've chosen to publish it on what has turned out to be a busy news day at the time of year when few are much interested in parliament, the potential for the hiding of embarrassment, let alone potentially criminal acts, remains immense. It has at long last been stated fairly uneqovically, if carefully, that we chose to involve ourselves in rendition and the mistreatment of detainees during the initial period of the "war on terror". It's how those involved are now held to account that matters, and the signs are that just as the CIA was allowed to get away with far worse, our own politicians and spies will be able to plead unique circumstances and get away with only stains on their character. Those who were tortured will merely have to bear the very real scars for the rest of their lives.

Wednesday, December 18, 2013

The futility of being right.

There are times when despite every fibre of your being telling you it makes you look an arse, you really just want to say I told you so/I was right/you people are damn fools. In fact, it doesn't just make you look an arse, it means you almost certainly are an arse. We hear complaints all that time that no one managed to predict the recession or the Arab spring, except of course for the tiny number some have deemed to be our latter day equivalent of Cassandras. It doesn't matter it's more than likely those same people completely lucked out and prior to getting something right had been wrong, wrong, and thrice wrong, we tend to downplay such things in our search for those who seem to know something the rest of us dunderheads don't.

To labour the point even further, it's incredibly easy to pose a political soothsayer, not least when by far the best policy is to expect the worst and go from there. Don't predict riots though, as even if you turn out to be right, you really do look a tool. Chances are your hit rate if you're careful will be quite high, although considering others despite these rules have failed miserably, such as the sadly departed Mystic Mogg, or Mark "Osama bin Laden is dead" Steyn, perhaps there's more to it than there really seems.

It does though raise the question of how such a committee can possibly even begin to hold either ministers or the security services to account. The government seems to be asking Malcolm Rifkind, former foreign secretary, to sit in judgement of Jack Straw, former foreign secretary. Also alongside Rifkind will be Hazel Blears, a minister at the same time as Straw was failing to stop the Iraq war and signing memorandums authorising renditions. Will she be recusing herself? One suspects not. It also won't be able to get straight on with the work as the government continues to try to get Abdel Hakim Belhaj's case thrown out, meaning it's possible the inquiry won't have started until after the next election. Apparently enough then the government isn't even pretending to be interested in keeping its word any longer, and those hopes the likes of Liberty had for something better to turn up have very much not come to pass. As even a goon like me thought was the most likely result.

We will however be getting Gibson's interim report, which will be somewhat limited as the inquiry never heard any evidence. Seeing as it's also sat around for the best part of 18 months, it's bound to be redacted to the verge of complete pointlessness, and in the best Whitehall tradition, to blame precisely no one and also reach err, no conclusions whatsoever. Fantastic. It's also being published on the last parliamentary day before Christmas, no doubt alongside dozens of other unpleasant documents and statistics the government doesn't want anyone to know about. Isn't it great being right?

Monday, July 08, 2013

So. Ta ta then.

Abu Qatada is gone. Not, despite the attempts at further myth making and spin from the Home Office, because he had finally ran out of legal options, but almost certainly down to him realising that even if he had appealed again and delayed his deportation for another couple of years, he was never going to be able to live free (and die hard? Ed.) in this country. It's worth remembering that with the exception of a short period when he went "missing" after 9/11, Qatada spent the vast majority of the past decade either in Belmarsh or Long Lartin, or during the periods he was released on bail/control order, under the kind of curfew and restrictions that would rid life of pretty much all enjoyment.

Moreover, Qatada never faced a single charge in this country. If he had appealed, it's possible he could have been charged with some sort of offence over the material allegedly found in his home when he was last arrested which breached his bail conditions, but that's now rather moot. It might have taken 8 years for Qatada to be deported, longer if you include the time he spent detained without charge between 2002 and 2004, yet it's surely just as unacceptable that someone should spend that period of time under effective detention with charge. Babar Ahmad suffered a similar fate, despite it being unclear at best whether he had committed any offence whatsoever under UK law.

Qatada then went of his own accord, giving at least as his public justification that he now felt assured he wouldn't face a trial in his home country where the evidence against him would be tainted by torture. This in itself is an indictment of successive governments, rather than it is of Qatada, or an outrage that human rights laws prevented us getting rid of him at the first opportunity. For most of that time period ministers were perfectly happy for someone, however unpleasant, dangerous or even murderous, to be deported back to an authoritarian state where torture has long been endemic and trials by the same token are unfair. We would protest bitterly were a UK citizen subject to such abuses, or we would if it happened in a nation state we aren't friendly with, considering the prevarication over those accused of bombings in Saudia Arabia. Just look at the campaigns, both successful and unsuccessful, to stop the deportation of the Natwest Three and Gary McKinnion, and that was to the US.

Grudgingly, successive home secretaries were forced to take the legal route. However it came about, the end result has been for the judicial system in Jordan to be made at the very least fairer, benefiting the population there greatly as a by-product. Rather than celebrate this as an example of soft power, of the way that diplomacy can result in reform, the government naturally has presented this triumph as exactly why we should consider scrapping the Human Rights Act and even possibly withdrawing from the European Convention on Human Rights altogether. They can't explain why this needs to happen now, as there isn't a similar case waiting in the wings, and even if there was, it clearly wouldn't take as many years now that it's apparent that people can't be deported back to countries where the evidence against them was the product of torture. If you want to get rid of someone in such circumstances, either the evidence has to be dropped, or they can't be sent back. It isn't difficult.

Indeed, considering some of the wilder estimates and that it took 8 years, the reported bill to the taxpayer of £1.7m seems relatively slight. Quite why it was deemed necessary that a private jet had to be charted for his journey back to Jordan is unclear, especially when security was so lax that Qatada was not handcuffed at any point. Considering the way in which asylum seekers who have had their request rejected are dealt with, often travelling on commercial flights, his departure could surely have been arranged in a similar way had it been desired. That wouldn't however have provided the pictures that politicians clearly wanted, of Qatada not quite being carted off but certainly being sent on his merry way. Regardless of their supposed anger, it summed up what the Qatada case became: not about the rights and wrongs, but about being "tough".

There isn't of course even the slightest possibility of the Tories doing so, not least because the Liberal Democrats would never go along with it. It's also completely and utterly ridiculous: the only way to temporarily withdraw from the ECHR is by arguing that there is a severe and direct threat to the very life of the nation, which is exactly what the law lords decided there wasn't when they ruled that Labour's detention without charge of foreign terror suspects was unlawful. Can you imagine the government seriously arguing before even the lowest court in the land that one man is that dangerous?

Quite why the Tories swung so far from one point to the other in such a short space of time is unclear, unless there were still negotiations going on with Jordan right up until May's statement after PMQ's. It doesn't help that as much as you'd like to welcome the continuing attempts to ensure Qatada doesn't face a trial where the main evidence against him was almost certainly obtained through torture, the new treaty still doesn't look as though it's water tight. As Labour have pointed out, it doesn't seem on the surface as though it requires Jordan to actually change the code of criminal procedure SIAC ruled had to be altered for them to be satisfied torture evidence wouldn't be used. After all, the previous changes to the laws in the kingdom were meant to have solved the problem originally. They didn't.

To be fair to May, and as pointed out umpteen times previously, the real damage was done when ministers under Labour decided that Qatada was better off out of sight and out of mind than prosecuted and imprisoned for his preaching here. The evidence against him in Jordan, including that apparently obtained through torture, is flimsy at best. This doesn't however excuse either May or her department for crowing last year that Qatada was as good as gone, especially when even the slightest glance at their claims suggested they were being extremely optimistic if not outright disingenuous. It seems a pretty safe bet that Qatada will still be here come the next election, and that augurs well for what's likely to become a fight between the parties over whether we should repeal the Human Rights Act, a debate simply guaranteed to be conducted in a fact-based and civil manner. Can't wait, can you?

Thursday, April 18, 2013

Unacceptable in the 80s.

Seeing as we've spent pretty much the last ten days going over old wounds, it seems a shame to break the pattern now. Let's strike a slightly different note though: of all the myriad of things that Thatcher and Reagan inflicted on their respective countries, one thing neither did was authorise or condone the use of torture. While it's certainly true that Reagan for one had no qualms about participating in the most dirty, even treasonous (as would be alleged by the opposite side if it was the other way round; they almost got Clinton impeached for having his dick sucked, for comparison's sake) underhand dealings, as evidenced by his administration's funding of the Contras by the secret selling of arms to Iran, 25 years ago today the US signed the UN Convention Against Torture. On sending it to the Senate a month later, Reagan commented that the treaty "clearly express[es] United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today".

Quarter of a century on, the record of Thatcher and Reagan's heirs is starting to be laid bare. We already knew much about the extraordinary rendition programme and how "enhanced interrogation techniques" were authorised in the aftermath of 9/11, but the Task Force on Detainee Treatment report, commissioned by the Constitution Project, is the best effort yet to draw together how the policy progressed and was instituted, starting with the opening of Guantanamo and following on to its practice in Iraq. Their key finding is that "it is indisputable that the United States engaged in the practice of torture". No fudging, no moving of the goal posts; torture, whether directly authorised or not, was used. Nor do they shy away from the argument of some that such harsh techniques had results. They conclude that there is "substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable". Views are mixed as to whether the film Zero Dark Thirty actively suggests that the testimony given by one tortured detainee helped the CIA find Osama bin Laden (the report says that it does; I haven't seen it so can't judge), but it most certainly is not the "first draft of history" as claimed by Kathryn Bigelow.

The Constitution Project set up its own panel to investigate the treatment of detainees after the Obama administration decided not to take any further action or open any investigation into what went on during the first phase of the "war on terror". Back here in Blighty, where there is nothing to suggest that torture was ever sanctioned by a minister but plenty of evidence that collusion with the US in the rendition programmemost certainly was authorised, the Gibson inquiry was meant to provide answers. Instead it was unceremoniously abandoned, ostensibly on the grounds that the police needed to investigate the involvement of the security services and ministers in the rendition to Libya of two former members of the LIFG, which had links to al-Qaida, although one suspects the boycott by human rights groups at the limited scope of the inquiry also had something to do with it.

We could undoubtedly give too much credit to both Reagan and Thatcher over their stance, although Simon Jenkins was right yesterday to highlight how the latter's response to nearly being killed by the IRA was to carry on almost as if nothing had happened. Both cuddled up to regimes that most certainly did and continue to torture their own citizens, while at the funeral yesterday were such noted humanitarians as Henry Kissinger, Dick Cheney (arch defender of waterboarding) and Benjamin Netanyahu. There can be little doubt however as to which administrations will be judged most harshly on their foreign policies by history.

Tuesday, March 05, 2013

Keeping secrets secret.

There's a scene in the film Liar Liar (this will almost certainly be the only time I quote from a Jim Carrey film other than the Truman Show or Eternal Sunshine of the Spotless Mind approvingly) in which Carrey's character, compelled to tell the truth after a wish made by his son, screams down the phone at a long-term client once again seeking his legal advice that he should "STOP BREAKING THE LAW, ASSHOLE".

An obvious solution to this unpleasantness would be, you would have thought, to not get involved in illegal conspiracies where "terrorist suspects" are flown to various black sites around the world, or as the rendition programme has since ceased, to not actively conspire with authoritarian states over the detention of opposition figures, regardless of the business interests involved. This doesn't mean not working with states that we regard as having poor records on human rights whatsoever, when such relationships are vital to protecting our own citizens and interests, rather it means just not helping them with the things that our own courts would reject.

As Henry Porter (as an aside, it's worth noting the lack of outrage from the vast majority of those who condemned ZaNuLiarBore for their constant attacks on civil liberties this time round) and Richard Norton-Taylor have pointed out, these arguments might carry more weight if we didn't know all too well this part of the Justice and Security Bill only exists because of lobbying from the intelligence agencies. The fact is that the courts were getting far too close to the truth: that despite all of the claims to the contrary, the security services are still involved in practices that are either incompatible with basic human rights or which rather than making us more safe, do the exact opposite. While the Guantanamo detainees all decided to settle, as has al-Saadi since, it's more than possible that someone would emerge who had suffered either at their hands or indirectly who wouldn't, and would take the case all the way. The seven paragraphs were enough to get ministers hyperventilating; some of the material contained in the documentation of the war on terror could be enough to alter the perception of the security services for a generation.

The row over the control principle was always secondary to this. The Americans may well have been angered by the release of the seven paragraphs, but they were only ever released by our courts because the American courts had already let even more damning evidence on the treatment of Binyam Mohamed out into the public domain. In any case, as David Davis pointed out during the debate, the Americans are more than willing to let intelligence out when it shows them in a good light, and to say their own levels of security were previously wanting considering Bradley Manning and Wikileaks is an understatement. While it's certainly true that SIAC does not always find in the government's favour, as demonstrated in how Abu Qatada has been granted bail and in Ekaterina Zatuliveter's successful appeal against deportation as a spy, unless there are absolutely exceptional reasons justice must be open, and seen to be open. Closed material procedures were designed to protect the blushes of the security services, and the amendments to the legislation haven't done anything to change this.

It certainly brings into perspective the anger expressed by Blair at how he couldn't deport anyone designated as a "terrorist suspect" to wherever the hell he felt like; no doubt aware of how swiftly those opposed to a new dictatorial ally had been delivered into their grasp, it must have smarted that the likes of Abu Qatada and others kept winning their legal battles. It also remains to be seen whether charges will be brought against anyone involved in these two cases: the Gibson inquiry into rendition was abandoned as a consequence, ostensibly for the reason that the investigation by the Met would have further delayed the hearing of evidence. I'm certainly not holding my breath on that score.

The judgment by the Special Immigration Appeals Commission (PDF) is essentially a rehash of the ECHR's decision earlier in the year, that Qatada doesn't personally face the prospect of mistreatment or torture, but he does face the prospect of a trial where the main evidence against him is confessions from men who almost certainly were tortured. Regardless of the change to the Jordanian constitution to explicitly prohibit the use of evidence obtained via torture, Mr Justice Mitting and his team reached the conclusion that, based on expert evidence from Jordanians who gave written and in person testimony, the statements that incriminate Qatada may well be used against him, and that the burden of proof is likely to fall on the witnesses to prove they were tortured, rather than for the prosecution to prove that they weren't. As the torture happened over a decade ago and the Jordanian courts previously rejected the notion that torture took place, the likelihood of them being able to do so, even in front of three civilian court judges, is dubious in the extreme. Barring a further change to the Jordanian code of criminal procedure or a definitive ruling from one of two courts on the ambiguities in the code, Qatada is staying here.

Unless that is May manages to convince the Court of Appeal that SIAC is being unreasonable in its demands of the Jordanians, something that seems highly unlikely considering SIAC has come to effectively the same conclusion as the ECHR did. In the meantime, ol' bird nest face is free for 8 hours a day, if your definition of free is being tagged, followed by security officers the moment you step out of your front door and being denied access to pretty much everything that makes life pleasurable.

If all this seems a bit much for someone whose motivations have often seemed opaque, then SIAC also obtained new information on the nature of the evidence against Qatada. To say some of it is thin is an understatement: all that links Qatada to the "Reform and Challenge" case is that one of the defendants says he suggested the targets and then congratulated him afterwards; in addition, three of the defendants had copies of a book by Qatada.

The evidence against him for the Millennium plot isn't much thicker: Qatada gave one of the defendants money, although not ostensibly towards the plot, gifting him 800 Jordanian dinars with which he bought a computer, while the defendant admitted discussing the "issue of jihad" with Qatada, although not specifically about any plot. Another defendant claimed Qatada had given a further $5,000 to the same man, while the money he had been promised to marry the first defendant's sister never arrived. Otherwise, the evidence again amounts to possession of books by Qatada, and the discovery of messages between the two men. SIAC additionally comments on this that "[T]he record of the evidence produced at the trial does not clearly support the prosecutor’s case", although it's presumed that in the case file there will be statements from investigators that will.

All is likely to depend on whether the Jordanians are prepared to move further, or whether a case comes before either court that irons out the disagreement between the experts consulted by the commission. SIAC accepted that the Jordanians had moved significantly from their initial position, and also noted their awareness of how this was a potential opportunity for them to show they were capable of trying a man notorious internationally with scrupulous fairness. If SIAC was making its decision on that basis alone, as indeed had the ECHR, Qatada would be long gone.

In a different world, this entire case might be seen as showing the best of the British state. Despite the contempt often shown towards the Human Rights Act and the ECHR by politicians from both main parties, successive governments have abided by the decisions made in line with it, refusing to countenance ignoring the rule of law in this specific case, and have gone so far as to push Jordan towards making genuine judicial reforms. Pushing any authoritarian state in the direction of respecting basic human rights is something to be proud of, regardless of the circumstances.

Unfortunately, we're stuck with this world, and it's one where judges are traduced by tabloid newspapers for doing their job. By all means criticise the judiciary if they get basic decisions wrong, or apply the wrong tests when they sentence someone, but not when they've delivered a judgment as in-depth and cogently argued as Mitting has.

The real responsibility for this 7-year-long slog lies with the last government. The decision to simply get rid of Qatada rather than attempt to prosecute him has never been explained adequately: we don't know whether there simply isn't enough evidence against him, whether the evidence is mainly phone intercepts, whether his involvement with MI5 goes too deep, whether it was made impossible by the rendering of Bisher al-Rawi who reported on Qatada to MI5, or whether deportation was felt to be the easiest option. Where this government has failed has been to fall into the same trap as the previous one, of boasting to the media that the deportation is all but done and dusted, only to find it still hasn't got its legal arguments in order.

One suspects that Qatada will eventually get sent to Jordan, if only down to how successive governments have backed themselves into a corner. Should further changes to the Jordanian law not be forthcoming, then Qatada's bail restrictions will have to be either loosened or dropped entirely. The only other option is to impose a TPIM, and they can only last for two years. Even at this late stage there's still time for a potential prosecution to be looked at, however embarrassing that might be either for the previous government or the security services. It can't be any worse than the prospect of someone built up to be Osama bin Laden's right-hand man in Europe mooching free around London.

Monday, August 20, 2012

The continuing triumph of the securocrats.

I recall that, many aeons ago, good ol' Nicholas Clegg asked for ideas on what could be included in a freedom bill. The end result, the Protection of Freedoms Act, is it must be said one of the coalition's very few decent achievements. The amount of time "terrorist suspects" can be detained prior to charge is now 14 days rather than the 28, just a slight reduction on the 90 Tony Blair tried to ram through parliament, the section 44 "anti-terrorist" power the police had that allowed them to search anyone they felt like has gone, as has the biometric data of more than 1m of those arrested but not charged with any offence by the police, although how certain we can be of the destruction of the information is another matter.

We are though still completely in the thrall of securocrats, as a quick glance at the Graun today records. As though the vast majority of the security checks at airports weren't pointless enough, the coalition looks to be resurrecting an old Labour proposal to install similar scanning technology at railway and tube stations. They quite obviously won't be put in place everywhere, and so won't stop those determined to cause carnage who'll be able to enter the system at quieter points, but they will no doubt cause misery at the major terminals. Still, can't be too careful, can you?

The government certainly can't, at least not with intelligence provided by other governments. Not content with ensuring that there will never be a repeat of the release of the seven paragraphs, a memo on Binyam Mohamed which showed we knew the Americans had been involved in "rendering" detainees to foreign climes where they were to be tortured despite our repeated denials, information that we failed to act upon when those detained included British residents, we now learn that the very application for a closed material procedure can also be kept secret if necessary, to of course, "protect national security". In other words, it seems likely that every such order will be kept secret, as by its very nature intelligence involves national security.

If you believe the Ministry of Justice (snigger), this will in fact make it more likely that such claims will go to trial rather than result in settlements, just that we won't be able to know of the documentation that was involved. Which just ever so slightly misses the point, as it's that documentation that established the truth in the first place, and which shows the depths to which our security services are on occasion prepared to plunge. With the cancellation of the Gibson inquiry, and no replacement on the horizon, the desperate need to learn the lessons of our complicity in torture during the first phase of the war on terror seems to have been forgotten.

In truth, the last minute appeal by Qatada's canny lawyers to the European Court of Human Rights's grand chamber shouldn't really make any difference. It was going to take months if not another year or more for his deportation to take place as he would have almost certainly appealed to the ECHR again anyway. Theresa May in her statement to the Commons on Tuesday said as much; those briefing the media however said that the hope was to deport him by the end of this month, something that was never going to happen. If rather than appearing completely triumphalist on Tuesday she had instead made clear that this was simply the next stage but that the end was in sight, the whole thing would not have blown up in her face as completely as it has.

As Carl Gardner writes, it's not immediately clear who's right on whether the deadline for an appeal was the Monday or the Tuesday, although it looks more likely at this moment that it's the court and not the government. Assuming that it is the court, the cock-up would still have been the equivalent of a semi-on if May and the briefers had not gone so to town on how this meant Qatada was as good as on a plane being manhandled by the finest from G4S. Instead it just feeds wholly into the narrative of how this government currently can't do anything right, that like Nicola Murray, from bean to cup, they fuck up.

Or at least this appeared to be the case. According to Justice Mitting's SIAC ruling (PDF) revoking Qatada's bail, if the ECHR's rule 39 injunction against deportation had been lifted as neither side appealed, then the process could have been a relative formality. May could have "short-circuited" the process by declaring an attempt by Qatada to quash the original deportation order as clearly unfounded, leaving his only avenues of appeal the Divisional Court and then the Court of Appeal, without the process having to start all over again at SIAC. Any further appeal to the ECHR would then apparently have to be conducted from Jordan. While it's still dubious this could have all been accomplished in 10 days, Qatada may well have been gone within "a few short weeks" rather than months.

If accurate, and again this isn't certain, then it really has been a colossal balls-up. The grand chamber might well rule that Qatada's appeal was out of time, or alternatively dismiss it as there is no danger that he personally will be tortured in Jordan, as the court ruled. This though will take at least at least a couple of months, or potentially if it does decide to hear it much longer. In the meantime, Mitting may well decide that while the process rumbles along Qatada can be safely bailed again. Having all but waved him goodbye, Qatada is left once again having the last laugh, or at least smirk. May, meanwhile, is looking like this.

Instead, if we're to believe Theresa May, our need to deport an unwanted extremist has struck a blow for human rights in general in the country. In practice, this doesn't look quite so clear cut. The European Court of Human Rights ruled Qatada couldn't be deported in the main because the evidence of his co-defendants, which would make up the majority of the case against him, was obtained as a result of torture. May states that as they have since been pardoned, and that whatever they say will no effect upon those pardons, "we can therefore have confidence that they would give truthful testimony". This is dubious in the extreme. Their pardons might not be affected, but this hardly means that an authoritarian state can't put pressure on them in other ways.

May also seems to contradict herself. She said in her statement that Qatada will be able to challenge the original statements made against him, then states "[I]ndeed, one of the more significant recent developments is the change to the Jordanian constitution last autumn that includes an explicit ban on the use of torture evidence". Presumably if there's an explicit ban on the use of torture evidence then Qatada won't need to challenge the original statements as they won't be admissible? And in any case, there are plenty of vile regimes that in their constitutions have explicit restrictions on certain practices that they nonetheless indulge in. As nit-picking as this might look, these are exactly the sort of doubts that should Qatada appeal again to the ECHR will have to be addressed and answered.

On the whole though it's difficult not to applaud. As there seems to be no chance whatsoever that the government will reconsider and instead decide now that Qatada should be prosecuted here, especially after it's gone to all this effort to persuade the Jordanians to in turn persuade the ECHR that they can be trusted to try him fairly, this is undoubtedly the second best option. It not only shows, as pointed out previously by Maajid Nawaz, that we will not succumb to the very thing that the government's counter-extremism strategy defines as being unacceptable, the undermining of the rule of law, it also indicates that when really pushed we can work with countries such as Jordan to help them improve their systems of government without then in turn selling them weapons as a reward. It does mean that it's doubtful we'll ever learn exactly how intertwined Qatada was with the security services, and there's plenty of reasons why we shouldn't believe that MI5 only had contact with him three or so times prior to 9/11, but if it means we are rid of one of the main reasons for why the tabloids so loathe the ECHR and in turn the Human Rights Act, although there are plenty of others, then it'll at least somewhat make up for it.

Thursday, April 12, 2012

Lying and the passing of time.

It's a wonderful thing, the passage of time. Yes, we all of course edge ever closer to the grave with each second that goes by, but look on the bright side: it also means your memory of unpleasant past events in your life gradually fades.

Happily, it's unlikely that should this or any future government think about doing anything similar that it'll be exposed as easily. I said at the time that it was a little early to welcome the cancelling of the Gibson inquiry when it was far from clear that we would ever get a replacement, let alone a more independent one, and with the continuing controversy over the secret courts plan which would stop them ever releasing the equivalent of the seven paragraphs again it just underlines that this government is not more enlightened, it's simply more subtle in slamming the door shut. Hands up anyone who thinks that there'll be charges once the Met have finished investigating the two Libyan renditions, regardless of the offering of £1m to Belhaj. Exactly.